IMPORTANT POINT
Prolonged incarceration and lack of criminal history can justify bail under the NDPS Act, despite the commercial quantity of drugs involved.

JUDGMENT :

Rakesh Thapliyal, J.

1. Present applicant is seeking bail in relation to Case Crime No. 734 of 2022 for the offence punishable under Section 8/20/60 of the of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “NDPS Act”), Police Station – Kashipur, District Udham Singh Nagar.

2. It is submitted by the learned counsel for the applicant that applicant is innocent and he has been falsely implicated in the present case. It is alleged that applicant was selling the prohibited drugs (injections and pills), which according to the prosecution, was of commercial quantity.

3. It is submitted by the learned counsel for the applicant that present applicant is languishing in jail since 13.12.2022 and on 13.06.2023, charges were framed and there are total ten witnesses and uptill now, not a single witness has been examined. She further submits that apart from this case, applicant has been implicated only in one criminal case for the offences punishable under Section 147, 323, 504, 506 IPC but no FIR for the offence punishable under Section of the NDPS Act is registered against him. She further submits that applicant is seeking bail on the ground that applicant is in incarceration and till date, no witness has been examined and there is no compliance of Section 100 (4) Cr.P.C., and further there is no public witness and there is no compliance of Section 50 NDPS Act and there is no possibility of trial to be concluded within a short period of time.

4. No doubt, the alleged contraband (medicines) which are recovered from the present applicant is of commercial quantity. In this case, since the investigation has already been concluded and trial is going on, therefore, this Court is of the view that since the applicant is in jail since 13.12.2022, the condition as stipulated under Section 37 of the NDPS Act can be dispensed with, at this stage, particularly, when the applicant has no criminal history in respect of offences punishable under NDPS Act.

5. Learned State Counsel has seriously opposed the bail application by saying that by virtue of Section 37 of the Act, since the alleged recovered contraband is commercial quantity, therefore, the applicant is not entitled for bail.

6. At this juncture, it is necessary to reproduce Section 37 of the NDPS Act. The same reads as under:-

“37. Offences to be cognizable and non bailable—

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)—

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.”

7. Section 37 of the NDPS Act is a very rigorous provision. As per Section 37 of the NDPS Act, the conditions which the Court has to examine are that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.

8. In response to this, learned counsel for the applicant submits that no doubt, as per Section 37 of the Act, bail in such cases may not be granted, unless the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. But, denial of bail does not giv